Anureet Kaur is a 2nd year student at Rajiv Gandhi National University of Law, Punjab
Introduction
An Influencer has the power to shine a light on injustices and neglect perpetrated against individuals and groups. The landscape of the influencer industry is continuously evolving, with new regulations and guidelines being introduced to keep up with the changing dynamics. In present times, social media has become an essential part of our lives. According to a report published by the University of Maine, there are approximately 4.8 billion social media users worldwide which is 59.9% of the global population and 92.7% of all internet users.
Influencers on social media are the persons who have a large social media following and are usually seen as trendsetters for the audience. In today’s world, their suggestions, endorsements, and recommendations play a crucial role in influencing and shaping the public opinion of their audiences. However, the ethical standards on social media are often overlooked by the influencers. In this blog, the author emphasizes the need to establish an “Ethical Code for Influencers” to ensure and cultivate an ecosystem for the influencer industry that is ethical, accountable, and transparent, thus fostering trust and responsibility.
Influencer Code of Ethics
There is a distinction between legality and ethics. Ethics are generally based on values and morality, thus aligning mostly with the Natural School of Law. On the other hand, legislation need not be ethical and is ordinarily based on codified regulations and guidelines established by an authority to maintain order in a society. Thus, ethics emphasize what is right or just, whereas legislation is more concerned with enforceability of the particular provisions.
The Influencer Code of Ethics was originally written by Morten Rand-Hendriksen and is one of the major motivations for the author to write on this topic. The code highlights the obligation of an Influencer to present fact as fact and opinion as opinion. The Influencer Code of Ethics by Morten outlines some of the important ethical guidelines for influencers. The Code of Ethics for Bloggers, Social Media and Content Creators which is based on the Code of Ethics for the Norwegian Press published by the Norwegian Press Association and adhered to by all members of the Norwegian press served as the model for Morten’s Influencer Code of Ethics.
There is no universal legal code of ethics for influencers to govern and regulate the influencer industry, thus raising various disputes related to accountability and transparency, and hampering the trust and rights between the influencers and their audiences. This highlights an urgent need to cultivate an ecosystem for the influencer industry that is ethical, accountable, transparent, and fosters trust and responsibility between the influencers and their audiences. Moreover, a universal code of ethics will encourage the influencers to endorse products and brands that are genuine, thus prohibiting deceptive tactics such as false review claims and spurious information.
Legal Code of Ethics for Influencers: Indian Perspective
Under Indian Law, influencer marketing is regulated by several regulations and guidelines that govern advertising, consumer protection, and intellectual property rights. The primary legislation governing influencer marketing in India is the Consumer Protection Act, 2019. The Act mentions consumer rights and the responsibilities of influencers and brands in ensuring fair trade practices. Furthermore, influencers are subject to regulatory body’s advertising standards along with consumer protection legislation. A self-regulatory body called the Advertising Standards Council of India (ASCI) controls and looks into advertising activities in the country.
The rising impact of the influencer industry and the reach of influencers have simultaneously increased the possibility of duping consumers with deceptive promotions and unethical business practices. Therefore, the Ministry of Consumer Affairs, Food and Public Distribution in India released a guideline called “Endorsement Know-hows!” on January 20, 2023, to ensure that celebrities and influencers don’t mislead consumers while promoting goods and services. The step taken by the government aims to build consumer trust and provide a shield against deceptive practices by the influencers.
However, there is a need to take appropriate technical and organizational measures to maintain the ethical standards in the influencer industry of India, especially looking at the fact that India had 462.0 million social media users in January 2024 and more than 50 million social media influencers. Moreover, India’s influencer marketing sector is projected to reach INR 3,375 crore by 2026, with a CAGR of 18%. Thus, navigating the realm of the influencer industry in India requires careful consideration of various legal and ethical aspects including contractual agreements, compliance with local and international regulations,
International Perspective
Various governments have recognised the growing need to regulate influencer marketing in their respective countries. In the United States (US), the Federal Trade Commission (FTC) has released guidelines for social media influencers, covering the larger spectrum of online advertising and promotions. The FTC has released the “Disclosures 101 for Social Media Influencers.” It provides a set of guidelines for social media influencers who endorse different brand products.
Furthermore, FTC regularly provides information regarding the updated guidelines for influencers and marketers such as it necessitates the use of informative hashtags like #ad, and #paid to disclose paid partnerships. In 2018, the FTC issued over 90 educational letters instructing influencers about their obligation to disclose the existence of a “material connection” between themselves and a product they are promoting.
The regulatory framework in the United Kingdom (UK) related to influencer marketing is stringent and influencers need to comply with various laws and guidelines to ensure that their content is ethically coherent with them. Furthermore, the Advertising Standards Authority (ASA) and the Competition and Markets Authority (CMA) prohibit influencers from making uncorroborated and spurious clams.
Similarly, in Western countries such as France, Germany, and Italy, the influencer market is being regulated by regulatory bodies such as the Observatory of French Advertising Self-Regulatory Organization (ARPP), Chambers of Commerce and Industry, and Italian Advertising SRI Jury (and Supervisory Committee), respectively.
The legal frameworks of most Western nations further provide various provisions to safeguard and protect the intellectual property rights of individuals and organisations. However, the influencer industry in these countries is not yet entirely regulated and the influencers have been able to identify loopholes to misuse their influence in hampering public opinion. The lack of comprehensive regulations and guidelines for regulating influencer activities on social media platforms raises a serious issue. For instance, in Russia and Brazil, there is no comprehensive legislation and guidelines to regulate the influencer market of their countries, thus creating a regulatory vacuum.
Judicial Viewpoint
There are diverse and conflicting judgements given by various judicial courts regarding influencer regulations around the world. There have been various landmark cases, where individuals have unearthed major irregularities by using social media platforms, as in the famous case of Frances Haugen where he made significant revelations about Facebook’s complicity in spreading misinformation.
However, in contrast, there have been cases where social media influencers failed to ensure ethical and legal standards, thus getting entangled in legal disputes. For instance, in the case of Mondelez India Foods Pvt. Ltd. & Ors. vs. Mr. Revant Himatsingka, Revant Himatsingka, a social media influencer in India, posted a video in April 2023 where he criticised the nutritional content of Bournvita (a famous nutrition drink brand in India). As a reply, Bournvita addressed a legal notice to the social media influencer who later took down the video and apologised to Cadbury.
This case emphasizes the need for regulation of influencer marketing and highlights the manner in which the influencers can use their positions on social media platforms to question brands. However, there are instances where the influencers misuse their position to promote spurious and misleading claims, as seen in the case of Revant Himatsingka and the case of Marico Limited v. Abhijeet Bhansali, where the court ordered the YouTuber to remove the video.
Challenges
There are several regulations and guidelines to regulate the activities in various industries. However, the question arises “Why isn’t there a Code of Ethics for social media influencers?” The answer lies in the ethical nature of the Code itself. A human is subjective by nature and what might be ethical for one, might not be ethical for others. As every individual has their own set of moral guidelines, it becomes difficult to impose one set of universal regulations. Moreover, imposing limitations on social media influencers can act as censorship on the freedom of speech and expression. However, the author is of the opinion that striking a balance between the right to speech and expression and regulating the activities of the influencers is definitely challenging, but not impossible.
Suggestions and Recommendations
The influencer industry is continuously evolving and there is a need for a legal code of ethics for the influencers similar to the one propounded by Morten Rand-Hendriksen in his blog. To guarantee a thorough awareness of ethical practices and legal requirements; influencers, enterprises, and marketing firms should be required to mandatorily participate in education and training programs to protect the rights of the consumers in the influencer industry. The Code should specifically have a provision for regular training and awareness sessions for the influencers.
Furthermore, the disclosure rules should be included in the code for the disclosure and transparency of the influencers’ relationship with brands or products. These disclosures and claims must be explicit and not disguised. Proper hashtags should be put by the influencers as provided in the regulations of the US and UK. Moreover, the accuracy of the claims and information provided by the influencers must be fact-checked through a due diligence procedure. It is recommended that before promoting a product, influencers fact-check and confirm its claims.
With great power comes great responsibility, the code of ethics should include provisions penalising the influencers if they aren’t fair, honest, truthful, and respectful toward other fellow members of society and facts. A globalised ethical framework for influencers should be established, permitting cultural and legal modifications in different countries. Collaborations with international organisations can establish a code that is widely recognised and accepted. For instance, an international organization can collaborate with Union des Métiers de l’Influence et des Créateurs de Contenu (UMICC) [the French professional association for influencer marketing] Ethical Charters for influencers for the effective implementation of the code in France. Similarly, the same can be carried forward in other countries as well. A proper “Ethical Code for Influencers” is an urgent requirement when looking at the size and impact of the influencer industry.
Conclusion
Influencer Marketing has now become a multi-dollar industry and a staple for both retail behemoths and e-commerce entrepreneurs. The rise in the importance of the influencer industry highlights the need for a comprehensive “Ethical Code for Influencers” to ensure the protection of rights, transparency and accountability. The implementation of explicit guidelines and regulations can ensure the trust between the influencers and their audiences.
Furthermore, various brands and entrepreneurs collaborate with social media influencers to strategize their brand awareness to drive their conversions and sales. For example, H&M leveraged a range of celebrity influencers to promote its holiday line. As influencers play a crucial role in present times in shaping public opinion, thus the establishment of a universal code of ethics for influencers can create a balanced ecosystem by holding influencers accountable for their actions and empowering audiences about their rights. The influencer industry is growing exponentially and shows no sign of slowing down; thus, it becomes essential to have a legal code of ethics for influencers to regulate it.